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21 F.

3d 425
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished
dispositions is disfavored except for establishing res judicata, estoppel, or the law
of the case and requires service of copies of cited unpublished dispositions of the
Fourth Circuit.

UNITED STATES of America, Plaintiff-Appellee,

Bobby Julian BATTS, Jr., Defendant-Appellant.
No. 93-5583.

United States Court of Appeals, Fourth Circuit.

Submitted Feb. 18, 1994.
Decided March 11, 1994.

Appeal from the United States District Court for the Eastern District of
North Carolina, at Raleigh. W. Earl Britt, District Judge. (CR-93-26)
Michael G. Howell, Asst. Fed. Public Defender, Raleigh, NC, for
J. Douglas McCullough, U.S. Atty., Steve R. Matheny, Special Asst. U.S.
Atty., Hal F. Askins, Special Deputy Atty. Gen., Raleigh, NC, for
Before WILLIAMS and MICHAEL, Circuit Judges, and SPROUSE,
Senior Circuit Judge.

Bobby Batts appeals from a district court judgment entered pursuant to a jury
verdict finding him guilty of possessing a firearm after being convicted of a
felony, in violation of 18 U.S.C.A. Sec. 922(g) (West Supp.1993). Batts was a

passenger in a vehicle involved in a police chase, which ended with police

forcing the vehicle in which Batts was riding to stop. Batts's arresting officer,
Deputy Alvin Proctor, saw Batts holding a gun in his hand as he exited and ran
from the vehicle. Proctor pursued Batts on foot until he rounded the corner of a
house. When Proctor paused to peer around the corner of the house before
continuing, he saw Batts pointing the gun directly at him. He then ordered
Batts to drop the gun, and testified that Batts responded by throwing the gun to
his right.

On appeal, Batts contends that the district court committed error by admitting
into evidence hearsay testimony by Proctor and another officer, Edith Ward, a
canine handler, to the effect that upon Ward's arrival at the scene moments
after Proctor apprehended Batts, Proctor told Ward that Batts had a gun and had
thrown it into the grass to his right. We find the admission of this evidence to
be harmless, since it did not justify any conclusion not already warranted by
nonhearsay evidence. See United States v. Indelicato, 611 F.2d 376, 383-84
(1st Cir.1979); United States v. Vanderpool, 528 F.2d 1205, 1207-08 (4th
Cir.1975). Deputy Proctor testified to personally witnessing Batts hold the gun
and throw it to his right. He also testified that he could see the finish of the gun
in the grass with his flashlight. Finally, when Ward arrived on the scene only
moments later with a police dog highly trained in conducting article searches,
the dog quickly found a gun in the grass, and reacted to the discovery with an
extremely strong aggressive alert, which Ward testified indicated that the gun
had been in its location for less than thirty and probably less than fifteen

Viewing this evidence in a light most favorable to the government, we find it

sufficient to support the jury's conclusion that the government established that
Batts possessed the gun which police found in the grass, and therefore reject
Batts's contention that the court erred by denying his motion for acquittal. See
Jackson v. Virginia, 443 U.S. 307 (1979). Moreover, we reject Batts's assertion
that the court erred by permitting the introduction of the gun into evidence on
redirect examination. The record discloses that, contrary to Batts's assertions,
the gun was the subject of questioning on cross-examination. In any event, the
court could, within its discretion, properly admit this evidence in the interest of
justice, since it was clearly highly relevant to the crime with which Batts was
charged. See United States v. Riggi, 951 F.2d 1368, 1375 (3d Cir.1991).

Finally, we find no error committed by the district court in responding to the

jury's question regarding whether it could take into account the lack of
fingerprint evidence in making its determination. The fact that the court
accommodated the government's request for an instruction regarding the

element of possession immediately before answering the jury's question did not
detract from the unequivocal, direct, and clear affirmative response by the court
to the jury's question. Accordingly, the judgment of the district court is
affirmed. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court and
argument would not aid the decisional process.*


In view of our disposition of this case, we deny Batts's motions to hold this case
in abeyance and to appoint new counsel for him